Schacht And The Origins Of Muhammadan Jurisprudence

2252 words - 10 pages

Joseph Schacht was perhaps one of the more controversial Western scholars on Islamic law. Although his work, The Origins of Muhammadan Jurisprudence, was originally received with some measure of critical acclaim, over time, scholars have attempted to redress the controversial underpinnings of his theory on the nature of prophetic authority in the centuries after Mohammad’s death. At the heart of Schacht’s argument is the idea that legal traditions ostensibly stemming from Mohammad were in fact created by traditionists in the 2nd Century AH to change the doctrine of the ancient schools of law (Schacht 1953 178). These fabricated traditions, in turn, can be determined to be false because of ...view middle of the document...

At some point in the generation before Shafi’i and Malik, a number of traditionists, in an attempt to change the still-evolving doctrine of these schools, put into circulation prophetic traditions. These prophetic traditions were created by individuals who, for political, religious, or legal reasons had a stake in changing either a specific ruling of the schools, or, in a larger sense, changing the legal theory of the schools themselves. These individuals, whom Schacht calls the “common link,” disseminated the fabricated tradition after creating a false chain of transmitters back to the time of Mohammad. For Schacht, the chain of transmitters that came after this common narrator is real; however, the chain preceding the common narrator is false, and was created to give support to his position. A kind of tug-of-war developed as the schools sought to maintain the strength of their doctrines in opposition to these new traditions.
This tug-of-war continued through Shafi’i’s time, and is seen in the debates between Shafi’i and other legal scholars. Schacht points out that in these debates, Shafi’i repeatedly insisted on the supreme authority of prophetic traditions as a source of law. These repeated assertions led Schacht to conclude that the matter was not the accepted doctrine of other schools and only became so through Shafi’i’s influence. This debate is also perhaps seen in Malik’s Muwatta.
Malik, a contemporary of Shafi’i, although preceding him by a quarter of a century or so, collected various legal rulings and traditions, some prophetic, and compiled these under appropriate headings. What is evident from Malik’s work is, at times, he chose to support the “living tradition” of the community over the prophetic tradition. For example, in the discussion on non-refundable deposits, which were expressly prohibited by the prophetic tradition, the “living tradition” of the community generally allowed for deposits to be kept by the seller if the buyer backed out. Thus, for Schacht, the divergence between the “living tradition” as put forth by these ancient legal schools and prophetic traditions that were growing in circulation shows that the doctrine of the former had begun without the intrusion of prophetic traditions, and must be placed prior to those traditions (Schacht 1953 80).
The significance of Shafi’i’s influence is seen in the century or so following the change in legal theory about the nature of prophetic traditions. This newly recognized authority of prophetic traditions led, as Schacht argues, to the creation of many new traditions that cited Mohammad as their ultimate source. To prove this, he traced the evolution of prophetic traditions in three time periods, the earliest preserved legal works of the mid-to late 2nd/ 8th century, the classical hadith collections of the mid-3rd/9th century, and later legal writings and collections of hadith of the 4th/10th century onward. The results from this survey led him to conclude that a sort of...

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